Burgui, D. v. Burgui, A. ( 2015 )

J-A08027-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DANIELA BURGUI IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ALBERT S. BURGUI
Appellant No. 1390 MDA 2014
Appeal from the Decree of July 16, 2014
In the Court of Common Pleas of Berks County
Civil Division at No.: 09-16199
BEFORE: SHOGAN, J., WECHT, J., and STRASSBURGER, J.*
MEMORANDUM BY WECHT, J.: FILED APRIL 10, 2015
Albert S. Burgui (“Husband”) appeals the July 16, 2014 divorce decree
that made final the June 26, 2014 order that denied Husband’s exceptions to
the Master’s recommended equitable distribution of the marital property
between Husband and Daniela Burgui (“Wife”). After review, we affirm.
The trial court provided the following factual and procedural summary:
[Husband] and [Wife] were married on August 20, 1994, in
Constanta, Romania. The [p]arties have one child, [I.B., born in
August 2000]. Wife filed a Complaint in Divorce [in Berks
County] on December 8, 2009, requesting primary custody of
the minor child, equitable distribution of all marital property,
alimony and counsel fees/ costs/expenses. The instant appeal
concerns the equitable distribution of the parties’ marital
property and alimony and counsel fees.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-A08027-15
After separation of the parties, Husband has remained the sole
owner and operator of Beltrans, Ltd., a trucking business. Wife
is a teacher with the Daniel Boone School District. [After
hearings on May 20, 2013 and July 19, 2013,] Divorce Master
[Louis M.] Shucker provided a detailed report and
recommendation based upon his extensive attempts to resolve
all outstanding economic issues. [The Master made a
determination of Husband’s income in which he rejected an
approach that used depreciation of Beltrans’ assets and instead,
included a portion of Beltrans’ retained income as part of
Husband’s income. The Master also determined the value of
Beltrans’ equipment in calculating the worth of the company.
The Master recommended: an approximately equal division of
the marital assets with Husband retaining the business and Wife
retaining the marital residence, along with the associated
mortgage and home equity loan; alimony to Wife in the amount
of $500.00 per month for sixty months; and counsel fees to Wife
in the amount of $7,500.00.] Husband filed exceptions to the
Divorce Master’s Recommendation and upon agreement of
counsel submitted the case to [the trial court] to be decided on
briefs and the record produced by Master Shucker. [The trial
court] reviewed the transcript and report of Master Shucker as
well as the documents and evidence submitted and entered an
Order on [June 26, 2014,] denying Husband’s Exceptions. . . .
Trial Court Opinion (“T.C.O.”), 10/14/2014, at 1.
On July 16, 2014, the trial court entered the divorce decree, which
included equitable distribution as proposed by the Master. On July 23, 2014,
Husband filed a notice of appeal. The trial court ordered, and Husband
timely filed, a concise statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(b).
Husband raises six issues for our review:
I. Whether the trial court erred as a matter of law and
abused its discretion by denying [Husband’s] exceptions to
the Divorce Master’s report and recommendation and
granting [Wife] five (5) years of alimony and in its
assessment of [Husband’s] income?
-2-
J-A08027-15
II. Whether the trial court erred as a matter of law and
abused its discretion by denying [Husband’s] exceptions to
the Divorce Master’s report and recommendation and by
awarding [Wife] seven thousand five hundred dollars
($7,500.00) in counsel fees?
III. Whether the trial court erred as a matter of law and
abused its discretion by denying [Husband’s] exceptions to
the Divorce Master’s report and recommendation and by
affirming the Divorce Master’s conclusion that appraisals
are inherently suspect inasmuch as they are often
conducted by friends or family?
IV. Whether the trial court erred as a matter of law and
abused its discretion by denying [Husband’s] exceptions to
the Divorce Master’s report and recommendation and by
affirming the Divorce Master’s computation of [Husband’s]
income and subsequent conclusion thereon?
V. Whether the trial court erred as a matter of law and
abused its discretion by denying [Husband’s] exceptions to
the Divorce Master’s report and recommendation and in
affirming the Divorce Master’s recommendation, which
calculated, computed and considered that depreciation is a
part of [Husband’s] income?
VI. Whether the trial court erred as a matter of law and
abused its discretion by denying [Husband’s] exceptions to
the Divorce Master’s report and recommendation and in
affirming the Divorce Master’s recommendation, which
considered [Husband’s] retained earnings of 2010 as a
portion of assets for distribution?
Husband’s Brief at 2-3.
We review an equitable distribution order as follows:
A trial court has broad discretion when fashioning an award of
equitable distribution. Our standard of review when assessing
the propriety of an order effectuating the equitable distribution
of marital property is whether the trial court abused its
discretion by a misapplication of the law or failure to follow
proper legal procedure. We do not lightly find an abuse of
discretion, which requires a showing of clear and convincing
evidence. This Court will not find an abuse of discretion unless
-3-
J-A08027-15
the law has been overridden or misapplied or the judgment
exercised was manifestly unreasonable, or the result of
partiality, prejudice, bias, or ill will, as shown by the evidence in
the certified record.
Biese v. Biese, 979 A.2d 892, 895 (Pa. Super. 2009) (citations and
quotation marks omitted). Similarly, we review challenges to an award of
alimony and to an award of counsel fees for an abuse of discretion. Gates
v. Gates, 933 A.2d 102, 106, 109 (Pa. Super. 2007). We also note that “a
master’s report and recommendation, although only advisory, is to be given
the fullest consideration, particularly on the question of credibility of
witnesses, because the master has the opportunity to observe and assess
the behavior and demeanor of the parties.” Childress v. Bogosian, 12
A.3d 448, 455-56 (Pa. Super. 2011).
Because Husband challenges alimony and counsel fees and because
the award of those forms of economic relief rely, in part, upon his income,
we first address Husband’s fourth and fifth claims of error because, in those
claims, he challenges the determination of his income.
Husband disagrees with the Master’s calculation of his income. First,
Husband contends that the court erred by including retained earnings in his
income determination. Husband argues that his testimony demonstrated
that his company needed to retain those earnings to maintain his trucking
business. Husband’s Brief at 19-20. Husband contends that he provided
ample testimony relating to the increase in business expenses and the need
to purchase new equipment and hire additional employees. Husband asserts
-4-
J-A08027-15
that this testimony demonstrated that he was required to retain earnings to
support the business. Id. at 13. Husband argues that the record does not
support the finding that some of those earnings actually were available to
Husband.
Husband also asserts that the trial court erred in considering
depreciation as part of Husband’s income. Husband claims that the Master
erred in finding that the depreciation deduction on his corporate taxes was
not warranted. Husband’s Brief at 20. Husband also argues that there was
no proof that Husband took the deduction in an attempt to reduce income
for support or alimony. Id. at 21-22.
The Master considered that Husband’s trucking company had retained
income, which was defined as “accumulated profits, i.e., the net sum of the
corporation’s yearly profits and losses.” Master’s Report and
Recommendation (“Report”), 10/30/2013, at 18 (quoting Rohrer v. Rohrer,
715 A.2d 463 (Pa. Super. 1998)).1 Reviewing case law, the Master
determined that, because Husband had the ability to control the retention or
distribution of funds, he had the burden to prove that retention was required
to maintain the business. Id. at 19. The Master found that Husband failed
to provide any evidence that the retained income was necessary to maintain
____________________________________________
1
The Report does not have numbered pages. We have supplied page
numbers for ease of reference.
-5-
J-A08027-15
the trucking business. Therefore, the Master considered the retained income
after separation as part of Husband’s income. Id. at 20.
To determine Husband’s income, the Master then considered that the
trucking business had increased its retained income each year, from
$29,161.00 in 2010 to $47,557.00 in 2012. Further, the entire amount of
retained income available to the business increased from $109,269.00 in
2010 to $225,861.00 in 2012. Id. at 32. During the same period of time,
sales increased from $250,000.00 to $873,000.00. Id. at 31. Based upon
these numbers and Husband’s failure to convince the Master that the entire
amount was necessary to maintain the business, the Master credited
$47,557.00 as income to Husband for 2012, increasing his income to a total
of $95,114.00. In reaching this decision, the Master also considered that
Husband would receive a tax benefit from any awarded alimony, which
would reduce the actual effect on Husband’s income. Id. at 32.
The trial court denied Husband’s exception, finding that Husband’s
testimony provided no support for the proposition that the retained income
was necessary to the survival of the business. Further, the trial court noted
that Husband testified that some of his expenses, such as cell phones and
meals, were paid directly from the business. Therefore, the trial court found
that the record supported the Master’s determinations of Husband’s income.
T.C.O. at 6.
We agree with the trial court. In Rohrer, this Court addressed
whether retained earnings should be considered as income for support or as
-6-
J-A08027-15
an asset in equitable distribution. Rohrer, 715 A.2d at 465. There, the trial
court had ordered that the retained income should be used as income for the
purpose of child support. The master included the retained earnings from
the years prior to the support determination as an asset. Id. at 465. This
Court affirmed the arrangement, holding that it was not an impermissible
“double-dip,” or counting the same asset as both property for distribution
and income for support. Id. at 466. While not called to rule specifically
upon the issue, the Rohrer Court did not comment negatively upon the trial
court’s use of the retained income as part of income.
We addressed the issue more directly in Fennell v. Fennell, 753 A.2d
866 (Pa. Super. 2000). In that case, the trial court included retained
earnings as part of the father’s income for child support. Id. at 867. We
recognized that, in determining income for support, a trial court must
consider “all benefits flowing from corporate ownership” and “that the owner
of a closely-held corporation cannot avoid a support obligation by sheltering
income that should be available for support by manipulating . . . corporate
distribution amounts.” Id. at 868. However, in that case, the father was a
minority shareholder who could not control the distribution of profits.
Further, the retention of earnings was a long-standing practice in the
corporation and the trial court specifically found that the retention was a
business decision. Finding no evidence in the record of an intent to shield
income, we reversed the trial court. Id. at 869.
-7-
J-A08027-15
Here, the Master followed a similar path as outlined in Rohrer. The
Master considered retained earnings accumulated during the marriage as an
asset, namely, part of the valuation of Beltrans. Report at 27-29. The
Master considered the then-current retained earnings as part of Husband’s
income for alimony. Id. at 32. In following Fennell, the Master found the
retained income should be counted as income. Unlike in Fennel, Husband
had total control over distributions from the business, the business had
increased its retained income only recently, thus there was no long-standing
practice, and there was no evidence that the retained income was invested
for business purposes or necessary to maintain the business.
The record supports the conclusions reached by the Master. Husband
testified regarding his business expenses and that he obtained more
equipment and hired employees in the year prior to the hearing. Notes of
Testimony (“N.T.”), 7/19/2013, at 82-84, 85-88. Husband also testified that
he pays himself a salary sufficient to meet his needs and puts the rest of the
profits back into the business. Id. at 98-100. Husband explained that he
retains profits to pay unexpected expenses, including the $1000.00-per-
incident deductible on his business insurance. Id. at 101-02. The Master, in
making his credibility determinations, found that the retained earnings were
not all necessary to maintain the business, despite Husband’s testimony.
Husband was unable to explain the need to retain twice as much income as
he retained prior to separation. We defer to the Master’s credibility
determination and find no abuse of discretion.
-8-
J-A08027-15
As to the depreciation argument, the Master recognized that, at a
support conference, Husband’s income was determined by incorporating half
of the claimed depreciation into his income. Report at 14. However, the
Master rejected that method of calculation. Id. at 14-15. While the Master
found that it was “not clear that all of the depreciation deduction claimed by
Husband on his tax returns represent[s] the cost of acquiring new
equipment,” the Master decided to use retained income as an alternative
method of determining Husband’s income, as discussed above. Id. at 17.
Because the Master did not consider depreciation in his calculation,
Husband’s issue relating to depreciation is without merit.
We turn next to Husband’s challenge to the court’s alimony award.
Husband asserts that, given the circumstances of the case, Wife should not
have been awarded alimony. Husband contends that the factors did not
weigh in favor of alimony as Wife has a college degree, gainful employment,
employment benefits, and the opportunity for raises. Husband also argues
that, because Wife testified that her income is sufficient to meet her needs
and because alimony is only available to meet one’s reasonable needs, Wife
should not have been awarded alimony. Finally, Husband asserts that the
Master erred in concluding that Wife has understated her expenses and
reasonable needs. Husband’s Brief at 7-11.
[A]limony provides a secondary remedy and is available only
where economic justice and the reasonable needs of the parties
cannot be achieved by way of an equitable distribution. An
award of alimony should be made to either party only if the trial
court finds that it is necessary to provide the receiving spouse
-9-
J-A08027-15
with sufficient income to obtain the necessities of life. The
purpose of alimony is not to reward one party and punish the
other, but rather to ensure that the reasonable needs of the
person who is unable to support herself through appropriate
employment are met.
Alimony is based upon reasonable needs in accordance with the
lifestyle and standard of living established by the parties during
the marriage, as well as the payor’s ability to pay.
Balicki v. Balicki, 4 A.3d 654, 659 (Pa. Super. 2010) (citations and
quotation marks omitted). In granting alimony, the trial court must consider
the seventeen factors set forth in 23 Pa.C.S.A. § 3701(b).
The Master engaged in a detailed discussion of the seventeen factors.
Report at 30-38. The Master found that Wife, as a school teacher, was likely
to receive wage increases, but that there was no certainty about the amount
or timing of those raises. Id. at 31. The Master determined that Husband’s
company had more than doubled its sales since the parties’ separation, and
that Husband, as sole owner, had the ability to retain earnings or distribute
earnings to himself. Given the record, the Master concluded that Husband
was retaining more earnings in the company than necessary and included a
portion of those retained earnings as income for Husband. Therefore, the
Master calculated Husband’s income as approximately twice that of Wife’s
income. Id. at 31-32.
The Master credited Wife’s testimony that she had contributed to
Husband’s business by handling paperwork, dealing with customers, and
negotiating contracts and that Husband had not supported Wife’s efforts to
obtain her teaching certificate in the United States. Id. at 33. Also, Wife
- 10 -
J-A08027-15
maintained the home and provided the majority of childcare, which allowed
Husband to be on the road to develop the trucking company. Id. at 34, 35-
36.
The Master found that Wife had underestimated her expenses. Wife’s
expense statement indicated that Wife’s income was greater than her
expenses. However, Wife neglected to include any expenses for food,
clothing, car repair, school lunches, child care, or legal fees. The Master
found that, correcting for this oversight and the fact that Wife would no
longer be eligible for a mortgage deviation once the divorce became final,
Wife’s income would not meet her reasonable expenses. Id. at 36-37.
Conversely, the Master found that Husband had overinflated his expenses
and that his income, especially with the inclusion of the retained earnings,
was more than adequate to provide for his reasonable needs. Id. at 36.
The Master found that Wife had limited savings and would be receiving
the marital residence, which had an associated mortgage and home equity
loan. The Master determined that alimony would allow Wife to remain in the
marital residence and maintain the standard of living the parties had
attained during their marriage. Id. at 38. The Master concluded that Wife’s
income alone would not meet her monthly reasonable needs, especially once
Wife was responsible for the entire mortgage payment, and that the factors
weighed in favor of an award of alimony. The Master found it important for
Wife to maintain the marital residence to provide stability for I.B. Id. at 39.
- 11 -
J-A08027-15
The trial court concurred, finding that that record supported the Master’s
findings and the award of alimony. T.C.O. at 4.
We agree. Wife testified that the line of credit on the marital
residence was started to allow Husband to purchase a truck for his business,
that he continued to take small amounts from the line after separation, and
that she would be responsible for that payment after the divorce became
final. N.T., 5/20/2013, at 38-39, 41. Wife also testified that alimony would
help her meet her monthly obligations. Id. at 64. On cross-examination,
Husband’s attorney questioned Wife about her failure to include food,
clothing, car insurance, and other personal expenses. N.T., 7/19/2013, at
19-21. While Wife testified that these expenses are small, there is no doubt
that her expense statement was incomplete. Further, Husband testified that
he was not sure if Wife would be able to maintain the marital residence on
her salary alone. Id. at 135-37. Given that Wife’s income does not cover
her reasonable needs and that Husband has a higher income, we find no
abuse of discretion in the Master’s award of alimony or the trial court’s
denial of Husband’s exception.
Husband next contends that the Master erred in awarding counsel fees
to Wife. Husband argues that the Master misapplied the law and failed to
consider the property awarded to Wife or the value of the attorney’s services
rendered in determining whether attorney’s fees were warranted. Husband
also asserts that the evidence did not support the trial court’s conclusion
that Husband prolonged the litigation. Husband’s Brief at 14-17.
- 12 -
J-A08027-15
Counsel fees are awarded based on the facts of each case after a
review of all the relevant factors. These factors include the
payor’s ability to pay, the requesting party’s financial resources,
the value of the services rendered, and the property received in
equitable distribution.
Counsel fees are awarded only upon a showing of need. In most
cases, each party’s financial considerations will ultimately dictate
whether an award of counsel fees is appropriate.
Busse v. Busse, 921 A.2d 1248, 1258 (Pa. Super. 2007) (citations and
quotations marks omitted).
The Master found that Wife did not receive alimony pendente lite
(“APL”) during the course of litigation because the retained earnings were
not considered as part of Husband’s income at the time APL was decided.
The Master also concluded that the debt that Wife carried due to her counsel
fees would affect significantly her ability to meet her reasonable needs.
Report at 41. Wife incurred approximately $35,000.00 in total counsel fees
for the divorce and related litigation. The Master apportioned $15,000.00 of
that amount to the divorce litigation. Id. at 37.
As noted above, Husband’s income is greater than Wife’s. The vast
majority of what Wife received in equitable distribution is the marital
residence, which is not a liquid asset. In contrast, Husband received his
business, which has a significant amount of retained earnings. The Master
noted that Wife included neither her legal expenses nor the credit cards she
used to finance her legal fees as part of the expenses statements that Wife
submitted for her alimony claim. Id. at 37.
- 13 -
J-A08027-15
The parties’ financial circumstances largely dictate the award of
counsel fees. Busse, supra. Even with alimony, Husband is in a better
financial position than Wife. Given this record, there was no abuse of
discretion in the imposition of an award of $7,500.00 in counsel fees.
Husband next contests the Master’s consideration of appraisals of
Beltran equipment. Husband argues that the Master’s statement that
“appraisal are inherently suspect” was in error. Husband’s Brief at 18.
Husband asserts that he obtained independent appraisals while Wife
researched the value of the vehicles. Husband argues that the Master erred
in not using his valuations of the vehicles. Husband’s Brief at 19-20.
As part of his determination of the value of Beltrans, the Master
assigned a value to the business’ trucks and trailers. Wife provided values
based upon an internet search of similar vehicles and provided a total value
of $78,550.00. Husband provided appraisals with a total value of
$44,300.00. As a compromise, the Master valued the vehicles at $50,000,
“electing to honor the appraisals done for Husband but taking into account a
possible ‘discount.’” Report at 10.
A fact-finder need not accept even the uncontradicted opinion of
a valuation expert, although the fact-finder should offer some
explanation of the basis on which it sets value where that value
varies from the only value given in evidence.
Gaydos v. Gaydos, 693 A.2d 1368, 1377 (Pa. Super. 1997). Here, the
Master had two potential values. Neither party chose to have the business
as a whole valued by an expert. Instead, they submitted values for the
- 14 -
J-A08027-15
trucks and trailers owned by the business. The fact that the Master chose to
use neither Husband’s nor Wife’s submitted value, but to find a value
between the two, is within his purview as the fact-finder. The Master
provided a rationale for his valuation, namely that he found that Husband’s
estimate undervalued the company’s vehicles. While we do not condone the
Master’s statement regarding the inherent unreliability of appraisals, and it
was unnecessary to the resolution of the issue, the Master’s determination of
the value of the equipment was reasonable and was based upon the
evidence presented. Therefore, we find no abuse of discretion.
Finally, Husband argues that the Master erred by considering the
retained earnings of the business as both an asset to be divided in equitable
distribution and as income for the purposes of awarding alimony. Husband’s
Brief at 22-23.
The Master included the retained earnings accumulated during the
marriage as part of the value of Beltrans for equitable distribution. The
Master considered only at the retained earnings until December 2009, the
date of separation. The Master discounted the earnings for the part of the
year that the parties were separated and because, should the business be
sold, the retained earnings would be not received on a dollar-for-dollar
basis. Therefore, the Master concluded the business should be valued based
upon $50,000.00 worth of equipment and $66,727.00 in retained earnings.
Reports at 28-29.
- 15 -
J-A08027-15
For the purposes of alimony, as noted above, the Master found that
Husband could have distributed additional earnings to himself as income
without harming the business. Therefore, for 2012, the Master found
Husband’s income to be higher than reported by Husband to reflect more
accurately the amount of income available to Husband. While the Master
used retained earnings as both an asset and income, it was for different
periods of time and there was no impermissible double dipping.
As noted above, this approach was similar to that used by the trial
court in Rohrer. There, the trial court ordered that the retained earnings
were to be used as income for support. 715 A.2d at 464. However, the
master included the pre-date of separation retained income in the value of
the husband’s business. Id. at 465. While recognizing that “double-
dipping” was impermissible, we found this approach not to be a double-dip
because it involved two separate amounts of revenue. We condoned this
practice because it permitted “monies accumulated during the marriage to
be equitably divided.” Id. at 466. The Master here used a similar rationale.
The retained earnings accumulated during the marriage were included in the
value of Husband’s business to be divided in equitable distribution. The
retained earnings going forward were counted as income for the purpose of
determining whether alimony was warranted. We find no abuse of
discretion.
Decree affirmed.
- 16 -
J-A08027-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/10/2015
- 17 -